On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-229-03.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Newman, R. B. Coleman and Bilder.
On January 16, 2003, plaintiff Howard Walsh (Walsh) filed a complaint in the Law Division, Ocean County, against defendant/ third-party plaintiff, Brunnock & Fleming (B&F) alleging legal malpractice in B&F's handling of an underinsured motorist (UIM) claim arising out of a February 16, 1993 accident in New York in which Walsh, a pedestrian who resides in New Jersey, was struck by a taxicab driven by a New York resident and owned by a New York corporation. B&F answered the complaint, denying the breach of any duty owed to Walsh, and filed a third-party complaint against Rutgers Casualty Insurance Company (Rutgers), for a declaration that Rutgers was obligated to Walsh for any UIM claim arising from Walsh's 1993 accident and injuries. In its answer to B&F's third-party complaint, Rutgers asserted as one of its affirmative defenses that the claim for UIM benefits was barred by the applicable statute of limitations.
At the end of the discovery period, B&F filed a motion for summary judgment against Rutgers asking the court to apply New York's statute of limitations to the claim for UIM benefits and asserting that under the plain language of the policy, Walsh is entitled to UIM coverage. Under New York law, the six year statute of limitations for a UIM claim does not begin to run until the tortfeasor's liability policy is exhausted and, if that state's law applies, the claim for UIM benefits would be timely. Rutgers filed its opposition to B&F's motion and cross-moved for summary judgment, arguing the New Jersey statute of limitations applies and that it runs from the date of the occurrence. So viewed, the claim for UIM benefits is time barred.
Oral argument was held on December 17, 2004, and in two separate orders entered on that date, the trial court denied B&F's motion for summary judgment and granted Rutgers cross-motion for summary judgment dismissing the claim for UIM benefits.*fn1 On January 10, 2005, the trial court entered an order staying proceedings on the remaining claim of legal malpractice and adjourning the trial date pending this court's decision on B&F's motion for leave to file an interlocutory appeal. By order dated February 10, 2005, B&F was granted leave to file its interlocutory appeal. We now affirm the trial court's orders denying B&F's motion and granting Rutger's cross-motion on the ground that the UIM claim is barred by New Jersey's six year statute of limitations.
On February 16, 1993, as he was crossing the street at the corner of East 40 Street and Park Avenue in New York City, Walsh was struck by a taxicab that was operated by Henry Pitken (Pitken), a New York City resident, and owned by Splash Transit Corporation (STC), a New York City corporation. Walsh was employed in New York at the time. He was insured under a personal automobile policy issued by Rutgers in New Jersey. That policy included medical expense benefits for the insureds and uninsured motorist/underinsured motorist (UM/UIM) coverage in the amount of $100,000. Walsh was initially treated for his injuries at a New York hospital. Thereafter, he was treated by medical providers in the State of New Jersey. Walsh filed a claim with Rutgers for medical expense benefits pursuant to the New Jersey No Fault Act and further demanded arbitration of such medical expense benefits.
Walsh and his wife, Mary, hired Nicholas A. Mattera (Mattera), a New Jersey attorney with an office in New York, to represent them and a verified complaint on their behalf was filed on February 1, 1996, in New York Supreme Court against Pitken and STC. In July 1998, Mattera informed Walsh that he could no longer handle the case and the matter was referred at Walsh's request to B&F.
On October 10, 2000, prior to the commencement of the trial of the underlying tort action in New York, B&F sent a letter to Rutgers informing it for the first time of Walsh's intention to pursue a UIM claim. In a letter dated October 26, 2000, Rutgers responded, requesting certain information and stating its belief that the UIM statute of limitations had expired. On October 30, 2000 and November 1, 2000, B&F sent letters to Walsh stating,
As we discussed throughout the trial and on October 18, 2000, I was concerned that your insurance company, Rutgers Casualty, was not sued timely in order to preserve your claim for additional money beyond the $30,000 available from American Transit. We have confirmed that in order to preserve this claim for underinsurance, Rutgers Casualty would have had to been sued by October.
Since this was not done by either my firm or Nick Mattera, there is no longer a claim that may be brought against Rutgers Casualty.
Because it had received no response from B&F to its October 26, 2000 letter, Rutgers sent another letter dated December 8, 2000 in which it stated "it appears the UM statute expired on 02/16/99. We were notified of this claim on October ...